On the proper construction of section 20(1)(b) of the State Immunity Act 1978, whilst an adult member of a sovereign’s or head of state’s family exercising royal or presidential, constitutional and representational functions could be regarded in some circumstances as a member of the sovereign’s or head of state’s household, even though he or she lived apart from the sovereign or head of state, such a situation would be rare, and would be likely to be restricted to the case of a regent, heir to the throne or a person broadly exercising the sovereign’s or head of state’s functions in a full time capacity on his behalf.

Vos J so held when dismissing the third and fifth respondents’ applications claiming sovereign immunity from the claims made by the petitioner, Apex Global Management Ltd. The third respondent was Prince Abdulaziz bin Mishal bin Abdulaziz Al Saud. The fifth respondent, Prince Mishal bin Abdulaziz Al Saud, was the father of the third respondent and the half-brother of the King of Saudi Arabia. The third respondent and the fourth respondent, Emad Mahmoud Ahmed Abu-Ayshih, each held shares in the second respondent company, Global Torch Ltd, which was incorporated in the British Virgin Islands. The petitioner and the second respondent company each held shares in the first respondent company, Fi Call Ltd. The petitioner brought a petition concerning its shareholding in the first respondent company. The third and fifth respondents challenged the jurisdiction of the English court in relation to the petition, raising the question of whether they were entitled to sovereign immunity under section 20(1) of the State Immunity Act 1978, bearing in mind the provisions of article 31 of Schedule 1 to the Diplomatic Privileges Act 1964.

Section 20(1) of the State Immunity Act 1978 provides: “Subject to the provisions of this section and any necessary modifications, the Diplomatic Privileges Act 1964 shall apply to— (a) a sovereign or other head of state; (b) members of his family forming part of his household; and (c) his private servants, as it applies to the head of a diplomatic mission, to members of his family forming part of his household and to his private servants.”

Article 31 of Schedule 1 to the Diplomatic Privileges Act 1964 provides: “A diplomatic agent shall also enjoy immunity from [the receiving state’s] civil and administrative jurisdiction …”

VOS J said that section 20(1) of the State Immunity Act 1978 (“SIA”) focused on the family and domestic affairs. Thus, the place in which the sovereign lived could not be completely ignored. Temporary absence from the home would not prevent someone who would normally be regarded as part of a sovereign’s household from being such, but an adult sibling with his own family and dependents and, more importantly his own household, would not, normally at least, be regarded also as a member of the sovereign’s household. One would not normally expect a prince, who had an entirely separate household of his own, to be regarded as part of the same household as his brother, particularly when they were both elderly and had many children and wives of their own. It was important to remember that the purpose of the head of state’s immunity was functional. Likewise the personal immunity of a sovereign’s family had to be functional in the same sense. It could not extend to everyone who assisted the sovereign, or to everyone who carried out royal, constitutional or representational functions—that would make a mockery of the immunity, and would apply to thousands of people, not only in Saudi Arabia, but in many other countries too. The question was where the line was to be drawn. The key was to be found in the word “household” and the meaning of that word already set out. On the proper construction of section 20(1)(b) of the SIA, whilst an adult member of a sovereign’s or head of state’s family exercising royal or presidential, constitutional and representational functions could be regarded in some circumstances as a member of the sovereign’s or head of state’s household, even though he or she lived apart from the sovereign or head of state, such a situation would be rare, and would be likely to be restricted to the case of a regent, heir to the throne or a person broadly exercising the sovereign’s or head of state’s functions in a full time capacity on his behalf. On the facts of the present case, neither the third respondent nor the fifth respondent had established that they could properly be regarded as members of the King of Saudi Arabia’s family forming part of his household, within the proper meaning of section 20(1)(b) of the SIA. Accordingly, the third and fifth respondents’ applications claiming sovereign immunity from the claims made in the petition were dismissed.